PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 14-2738

_______________

CHARLES MACK,

Appellant

v.

WARDEN LORETTO FCI, TIM KUHN, Associate Warden,

JEFF STEVENS, Trust Fund Officer, Sued in their Individual

and Official Capacities; D. VESLOSKY, Correctional

Officer, DOUG ROBERTS, Correctional Officer, Sued in

their Individual Capacities

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 3-10-cv-0264)

District Judge: Hon. Kim R. Gibson

_______________

Argued April 18, 2016

2

Before: MCKEE1, Chief Judge, FUENTES, and ROTH,

Circuit Judges

(Opinion Filed: October 11, 2016)

Sean E. Andrussier, Esq.

John Bailey, Law Student

Anne Showalter, Law Student

Russell Taylor, Law Student [ARGUED]

Duke University School of Law

Science Drive and Towerview Road

Box 90360

Durham, NC 27708

Counsel for Appellant

1 Judge McKee was Chief Judge at the time this appeal was

argued. Judge McKee completed his term as Chief Judge on

September 30, 2016

Honorable Julio M. Fuentes assumed senior status on July

18, 2016.

Law students were permitted to enter their appearances and

participate in oral argument pursuant to Third Circuit L.A.R.

46.3.

3

Jennifer R. Andrade, Esq.

Jane M. Dattilo, Esq. [ARGUED]

Rebecca R. Haywood, Esq.

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

FUENTES, Circuit Judge.

Charles Mack is a Muslim inmate who claims that he

was terminated from his paid work assignment for

complaining to a prison official about two correctional

officers’ anti-Muslim harassment at work. He also claims

that the same officers’ harassment had caused him to refrain

from praying while at work. Mack brought this lawsuit pro

se against various prison employees seeking monetary relief

for alleged violations of his rights under the First

Amendment, Fifth Amendment, and the Religious Freedom

and Restoration Act (“RFRA”). The District Court dismissed

all of Mack’s claims.

Mack’s allegations raise several issues of first

impression in our Circuit, including (1) whether an inmate’s

4

oral grievance to prison officials can constitute protected

activity under the Constitution; (2) whether RFRA prohibits

individual conduct that substantially burdens religious

exercise; and (3) whether RFRA provides for monetary relief

from an official sued in his individual capacity. We answer

all three questions in the affirmative, and therefore conclude

that Mack has sufficiently pled a First Amendment retaliation

claim and a RFRA claim. We agree, however, that Mack’s

First Amendment Free Exercise claim and Fifth Amendment

equal protection claim must be dismissed. We will therefore

affirm in part, vacate in part, and remand to the District Court

for further proceedings.

I. BACKGROUND

A. Mack’s Allegations of Anti-Muslim

Harassment

Mack’s pro se complaint includes the following

allegations, which we assume are true for purposes of this

appeal.2 Mack is an inmate at the Federal Correctional

Institution in Loretto, Pennsylvania (“FCI Loretto”). He

worked for pay in the prison’s commissary from

approximately May 2009 until he was terminated in October

2 Finkelman v. Nat’l Football League, 810 F.3d 187, 190 n.11

(3d Cir. 2016). Because Mack proceeded pro se up until this

appeal, we will also consider his allegations made in response

to the defendants’ motion to dismiss, which incorporate and

are consistent with the allegations in his complaint. See

Hughes v. Rowe, 449 U.S. 5, 9-10 & n.8 (1980) (per curiam)

(considering pro se plaintiff’s amended complaint and

response to the defendants’ motion to dismiss to conclude that

plaintiff sufficiently stated a claim).

5

2009. His job responsibilities included stocking shelves,

filling inmate commissary orders, and cleaning the work area.

As a practicing Muslim, Mack was provided certain religious

accommodations at work. For example, Mack did not have to

handle pork products at the commissary, he was provided a

suitable area in which he could pray during breaks, and he

was permitted to attend religious services on Friday.3

Defendants Doug Roberts and Samuel Venslosky are

correctional officers at FCI Loretto who were assigned to

supervise the commissary at the time Mack worked there.

They were responsible for the safety and security of the

inmates and the orderly operation of the commissary.

While Mack was at work one day, Officer Roberts

walked up behind him and slapped him hard on the back.

Mack asked Roberts why he had hit him, to which Roberts

responded, “do you have a problem with what I did?”4 Mack

said “yes,” and Roberts declared, “you’ll be looking for

another job soon!”5 Officer Venslosky and other inmates

witnessed this interaction and laughed. The officers and

inmates continued to laugh and snicker at Mack throughout

his shift. When Mack finished work and left the commissary,

a fellow inmate informed him that he had an “I LOVE

BACON” sticker affixed to the back of his shirt. Roberts

3 See, e.g., Williams v. Bitner, 455 F.3d 186, 191-92 & n.6 (3d

Cir. 2006) (recognizing that practicing Muslims do not handle

pork); Williams v. Morton, 343 F.3d 212, 219 (3d Cir. 2003)

(recognizing that practicing Muslims pray five times each

day).

4 Am. Compl. (J.A. Vol. II 56-62) ¶ 14.

5 Id.

6

knew that Mack is Muslim and that Islam forbids the

handling and consumption of pork. The next day, Mack

asked Roberts why he had slapped the offensive sticker on his

back. Roberts asked Mack if he had a problem with that, and

then declared again, “don’t worry you’ll be looking for

another job soon!”6 A few days later, while Mack was at

work, Roberts loudly told Mack in the presence of Venslosky

and other inmates that “there is no good Muslim, except a

dead Muslim!”7 Venslosky and other inmates heard this

comment and laughed.

Mack claims that the officers’ anti-Muslim harassment

and animus created a tense work environment and caused him

to fear that he could be harmed at work because of his

religious beliefs. He “continued his work assignment very

carefully and nervously[,] not knowing whether an inmate

commissary worker [might] act out on Defendant Roberts[’]

statement and attempt to physically harm [him] for being

Muslim.”8 While Mack was permitted to pray at work, the

officers’ conduct “created a threatening [and] hostile

environment, that literally caused [him] to change his

behavior in that [he] would no longer pray in that area, and

would wait until he got off work.”9

6 Id. ¶ 17.

7 Id. ¶ 18.

8 Compl. (J.A. Vol. II 33-43) ¶ 35.

9 Mack v. Yost, No. 3:10-cv-264, ECF No. 42 (Pl. Mem. in

Opp’n to Defs.’ Mot. to Dismiss), at 4.

7

B. Mack’s Complaints to Prison Staff

Seeking redress, Mack spoke with Jeff Stephens, who

was Roberts’ and Venslosky’s supervisor.10 Mack orally

complained to Stephens about Roberts’ anti-Muslim conduct

and statements, and about Venslosky’s inaction during both

incidents. Stephens agreed to “look into it.”11 Approximately

one week later, Venslosky told Mack that he was being fired

from his commissary position for “bringing in other inmates’

commissary slips.”12 Mack replied that this was untrue, and

that the only reason he was being fired was because he had

complained to Stephens. Venslosky did not respond.

Convinced that Venslosky’s reason for firing him was

a sham, Mack located Stephens during his lunch period and

orally complained to him about his termination. Stephens

again responded that he would look into it. When nothing

came of that, Mack filed an inmate request-to-staff form

seeking an explanation in writing for his termination.

Stephens provided Mack with a written response from

Venslosky asserting that Mack was “caught bringing slips in

for inmates.”13 Mack then orally complained to the Warden,

John Yost, during his next lunch period. The Warden

10 Am. Compl. ¶¶ 4, 21.

11 Id. ¶ 21.

12 Id. ¶ 22. It is unclear from the record what “bringing in

other inmates’ commissary slips” means and why it is a

punishable offense. For purposes of this appeal, this

ambiguity is irrelevant.

13 Id. ¶ 26.

8

responded, “[w]hat do you expect me to do?”14 Finally,

Mack filed a formal grievance. Deputy Warden Tim Kuhn

repeated the same reason for Mack’s termination in his

response to Mack’s formal grievance. Mack then filed this

federal lawsuit.

C. Procedural History

Mack filed suit pro se against Roberts, Venslosky,

Stephens, Warden Yost, and Deputy Warden Kuhn for

alleged constitutional violations pursuant to Bivens v. Six

Unknown Named Agents of the Federal Bureau of

Narcotics,15 and for violations of the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”).16 Among

other things, Mack alleged that the defendants violated his

rights under the Petition Clause of the First Amendment,

which protects “the right of the people . . . to petition the

Government for a redress of grievances.”17 In particular,

Mack claimed that he was retaliated against for seeking to

redress his grievances, that is, for orally complaining to

Stephens about Roberts’ and Venslosky’s anti-Muslim

conduct.

The District Court dismissed the complaint for failure

to state a claim under Federal Rule of Civil Procedure

14 Id. ¶ 28.

15 403 U.S. 388 (1971) (recognizing an implied private right

of action for damages against federal officials alleged to have

violated a person’s constitutional rights).

16 42 U.S.C. §§ 2000cc et seq.

17 U.S. Const. amend. I, cl. 4.

9

12(b)(6). Mack appealed, and this Court vacated and

remanded.18 We directed the District Court to consider in the

first instance whether an inmate’s oral complaint to prison

staff constitutes protected activity under the First

Amendment’s right to petition.19 We noted that “[f]iling a

formal prison grievance clearly constitutes protected

activity,” but acknowledged that “certain informal, oral

complaints to prison personnel have been held to constitute

protected activity as well.”20 We also explained that Mack’s

allegations “clearly invite inquiry into” whether the

defendants violated Mack’s “First Amendment right to

practice as a Muslim,” and that Mack’s claims should not

have been dismissed without leave to amend.21

At the direction of the District Court, Mack filed an

amended complaint, which largely tracks his original

complaint. Construed liberally, Mack’s amended complaint

raises three constitutional claims and one statutory claim: (1)

First Amendment retaliation, invoking the Petition Clause; (2)

First Amendment Free Exercise Clause violation; (3) Fifth

Amendment equal protection violation; and (4) Religious

Freedom and Restoration Act violation.22 From Roberts and

18 Mack v. Yost, 427 F. App’x 70 (3d Cir. 2011).

19 Id. at 72.

20 Id.

21 Id. at 73.

22 42 U.S.C. § 2000bb-1(a). The District Court properly

construed Mack’s claim under RLUIPA, which does not

apply to federal government actions, as a claim under RFRA,

which does. See Mack v. Yost, 979 F. Supp. 2d 639, 650

(W.D. Pa. 2013) (“Because provisions under the RFRA are

10

Venslosky only, Mack seeks back pay plus interest for each

month since he was removed from his commissary position.

He seeks from all defendants $75,000 each in punitive

damages.23

The District Court dismissed Mack’s amended

complaint, too, for failure to state a claim under Rule

12(b)(6). Addressing Mack’s First Amendment retaliation

claim, the District Court held that “[a]n oral complaint to a

prison guard is not a petitioning for the redress of grievances

guaranteed by the First and Fourteenth Amendments.”24 The

Court accordingly dismissed this claim, reasoning that Mack

“had not filed a petition with an administrative agency,

whether by formal or informal means,” until after the alleged

retaliation occurred.25 The District Court also rejected

Mack’s equal protection claim because Mack had not

identified any similarly situated individuals whom prison

officials treated differently.26 As for Mack’s Free Exercise

and RFRA claims, which the District Court construed as

“potential” claims, the District Court held that the defendants

neither intentionally nor substantially burdened Mack’s

‘nearly identical’ to those under the RLUIPA, the Court will

address whether Mack can assert an actionable RFRA claim.”

(internal citations omitted)).

23 Mack sued Stephens, Yost, and Kuhn for damages in both

their individual and official capacities. He has conceded,

however, that federal sovereign immunity precludes him from

suing the officers for damages in their official capacities.

Mack, No. 3:10-cv-264, ECF No. 42, at 12.

24 Mack, 979 F. Supp. 2d at 648.

25 Id.

26 Id. at 646-47.

11

religious exercise, and it accordingly dismissed these claims

as well.27

Mack moved for reconsideration under Federal Rule of

Civil Procedure 59(e). The District Court denied that motion,

and Mack appealed. This Court then appointed pro bono

counsel to represent Mack.28

27 Id. at 650-52.

28 We extend our gratitude to the Duke University law

students who have done a commendable job representing

Mack on appeal. We also applaud Mr. Russell Taylor for his

impressive performance representing Mack at oral argument.

12

II. DISCUSSION29

There are many layers to this case. First, we will

discuss Mack’s First Amendment retaliation claim and the

Government’s corresponding defenses. With respect to this

claim, we conclude that Mack has alleged sufficient facts to

survive a motion to dismiss and that the defendants are not

entitled to qualified immunity at this juncture. We will

dismiss this claim, however, as to Defendants Yost and Kuhn.

Second, we will discuss Mack’s RFRA claim. We

conclude that (i) Mack can properly bring this claim against

prison officers for their individual conduct, (ii) he can seek

monetary damages from the officers, and (iii) his allegations

sufficiently allege a substantial burden on his religious

exercise.

29 The District Court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a district court’s decision dismissing a complaint.

Finkelman, 810 F.3d at 192. We note that “the standards of

review for an underlying dismissal order and for the denial of

a motion for reconsideration of the dismissal order are

functionally equivalent, because we exercise plenary review

of the dismissal order as well as of the legal questions in the

denial of reconsideration.” Wiest v. Lynch, 710 F.3d 121, 128

(3d Cir. 2013).

13

Third, we will turn to Mack’s claim under the Free

Exercise Clause. We conclude that there is no available

remedy for Mack under this claim and we will accordingly

dismiss it.

Finally, we will discuss Mack’s equal protection claim.

We conclude that this claim is insufficient to survive a motion

to dismiss.

A. First Amendment Retaliation Claim

i. Mack’s First Amendment Retaliation

Claim Against Warden Yost and Deputy Warden Kuhn

Must Be Dismissed

Mack claims that he was retaliated against for orally

complaining to Stephens about Roberts’ and Venslosky’s

conduct. While Mack brings this claim against Warden Yost

and Deputy Warden Kuhn as well, his complaint makes it

clear that he only spoke to these defendants after the alleged

retaliation occurred. There is nothing alleged from which we

can infer that Yost and Kuhn were personally involved in any

purported retaliation. Because plaintiffs in a Bivens suit

“must plead that each Government-official defendant, through

the official’s own individual actions, has violated the

Constitution,”30 Mack’s First Amendment retaliation claim

against Yost and Kuhn must be dismissed.

30 Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).

14

ii. Mack Properly Exhausted His

Administrative Remedies as to His First Amendment

Retaliation Claim

The Prison Litigation Reform Act (“PLRA”) requires

prisoners to exhaust any and all prison grievance remedies

before filing suit in federal court.31 “Failure to exhaust is an

affirmative defense the defendant must plead and prove.”32

The Government contends that Mack’s First Amendment

retaliation claim must be dismissed because Mack did not

exhaust his administrative remedies. It concedes that Mack

described in his formal grievance much of the alleged

wrongdoing in this case. Nevertheless, it argues that because

Mack’s grievance never mentioned his oral complaint to

Stephens about Roberts’ and Venslosky’s anti-Muslim

conduct—the alleged protected speech that forms the basis of

his retaliation claim—this claim was not properly exhausted.

We find this argument unconvincing.

Under the PLRA, a grievance must be described in a

level of detail sufficient to satisfy the prison’s standards.33

The Government describes the Bureau of Prison’s (“BOP”)

procedures as “silent or vague” regarding the level of detail

required in a grievance.34 When this is the case, an inmate’s

31 42 U.S.C. § 1997e(a).

32 Small v. Camden Cty., 728 F.3d 265, 268 (3d Cir. 2013).

33 See Jones v. Bock, 549 U.S. 199, 218 (2007) (“The level of

detail necessary in a grievance to comply with the grievance

procedures will vary . . . but it is the prison’s requirements . . .

that define the boundaries of proper exhaustion.”).

34 Gov’t Br. 15.

15

grievance must at least “alert[] the prison to the nature of the

wrong for which redress is sought.”35 As the Supreme Court

has explained, “the primary purpose of a grievance is to alert

prison officials to a problem.”36 We think Mack did just that.

Before beginning the formal grievance process, Mack

submitted a form requesting a written reason for his

termination. In his formal grievance, Mack claimed that the

response to his request was vague, and that he was “fired

from [his] job for no reason.”37 He went on to explain the

anti-Muslim harassment he endured at work. When his

grievance was rejected, Mack explained in his appeal that the

prison’s proffered explanation for his termination was a

“cover-up attempt.”38 He claimed that he was fired from his

job for “NO real reason related to [his] work.”39

Mack clearly alerted prison officials to his principal

allegation – i.e., that he was removed from his commissary

position for a pretextual reason. Even if Mack did not detail

his allegedly protected speech, his grievance nonetheless

notified officials that he believed he was unlawfully

terminated from his work assignment as retaliation for

exercising his First Amendment rights. Exhaustion merely

requires “inmates [to] provide enough information about the

conduct of which they complain to allow prison officials to

35 Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).

36 Jones, 549 U.S. at 219.

37 Mack v. Yost, No. 3:10-cv-264, ECF No. 38-3 (Defs.’ Mot.

to Dismiss Am. Compl.), Ex. 1b, at 2.

38 Id. at 8.

39 Id.

16

take appropriate responsive measures.”40 Given this fairly

lenient standard, and with no specific guidance from BOP

grievance procedures, we conclude that Mack exhausted his

administrative remedies before bringing his First Amendment

retaliation claim.

iii. A Bivens Action Exists for Mack’s

First Amendment Retaliation Claim

The Government next argues that Mack cannot bring a

First Amendment retaliation claim under Bivens. In Bivens,

the Supreme Court “recognized for the first time an implied

private action for damages against federal officers alleged to

have violated a citizen’s [Fourth Amendment] rights.”41

Thus, a Bivens action is a private cause of action for money

damages implied directly from the Constitution. The

Supreme Court has extended Bivens to two other contexts:

suits brought under the equal protection component of the

Due Process Clause of the Fifth Amendment, and suits

brought under the Cruel and Unusual Punishment Clause of

the Eighth Amendment.42 Although the Supreme Court has

40 Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004).

41 Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)

(citing Bivens, 403 U.S. 388 (1971)); see also Iqbal, 556 U.S.

at 675-76 (“In the limited setting where Bivens does apply,

the implied cause of action is the federal analog to suits

brought against state officials under . . . 42 U.S.C. § 1983.”

(internal quotation marks and citation omitted)).

42 Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green,

446 U.S. 14 (1980).

17

never formally extended Bivens to First Amendment claims,43

it seems to have occasionally assumed that First Amendment

retaliation claims can proceed under Bivens.44 Our Court,

however, has explicitly recognized a Bivens action when a

prisoner has been retaliated against for exercising his or her

First Amendment right to petition.

In Paton v. La Prade,45 we held that a Bivens action

may be implied directly from the First Amendment.46

Relying on this general principle, we held in Milhouse v.

Carlson47 that a Bivens action was available to an inmate who

was harassed and transferred to a less desirable prison cell

43 See Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012)

(“We have never held that Bivens extends to First

Amendment claims.”).

44 See Hartman v. Moore, 547 U.S. 250, 256 (2006) (noting

that “the law is settled that as a general matter the First

Amendment prohibits government officials from subjecting

an individual to retaliatory actions . . . for speaking out,” and

stating that “[w]hen the vengeful officer is federal, he is

subject to an action for damages under the authority of

Bivens”); see also George v. Rehiel, 738 F.3d 562, 585 n.24

(3d Cir. 2013) (stating that “we will proceed on the

assumption that there is a Bivens cause of action for First

Amendment retaliation claims” (citing Hartman, 547 U.S. at

256)).

45 524 F.2d 862 (3d Cir. 1975).

46 Id. at 870 (“[W]e believe the extension of the Bivens rule to

violations of first amendment rights to be both justifiable and

logical.”).

47 652 F.2d 371 (3d Cir. 1981).

18

location in retaliation for filing a lawsuit against prison

officials.48 Interpreting the pro se complaint as alleging a

violation of the First Amendment right of access to the courts,

we explained that “[p]ersons in prison, like other individuals,

have the right to petition the Government for redress of

grievances.”49 This right “must be freely exercisable without

hindrance or fear of retaliation.”50 Similarly, in Mitchell v.

Horn,51 we held that a Bivens action was available to an

inmate who was falsely charged with misconduct in

retaliation for exercising his First Amendment petition

rights.52 In light of these cases, we reject the Government’s

plea to not “extend” Bivens to Mack’s First Amendment

retaliation claim. Our precedents make clear that, in this

context, a Bivens action is already available.

iv. Mack’s Oral Complaint to Stephens

was Constitutionally Protected

We next address whether Mack has sufficiently

pleaded a First Amendment retaliation claim. “A prisoner

alleging retaliation must show (1) constitutionally protected

conduct, (2) an adverse action taken by prison officials

sufficient to deter a person of ordinary firmness from

exercising his constitutional rights, and (3) a causal link

between the exercise of his constitutional rights and the

48 Id. at 373-74.

49 Id. at 373.

50 Id. at 374.

51 318 F.3d 523 (3d Cir. 2003).

52 Id. at 530-31.

19

adverse action taken against him.”53 The previous panel of

this Court to address Mack’s retaliation claim found the latter

two elements satisfied: adverse action in the form of loss of

employment, and a causal connection because Mack claims

he was fired one week after engaging in the allegedly

protected conduct.54 The panel remanded to the District

Court to determine whether Mack’s oral grievance to

Stephens was constitutionally protected under the Petition

Clause, and the District Court held that it was not. We

disagree.

The Petition Clause embraces a broad range of

communications, and the availability of its protections has

never turned on a perceived distinction between written and

oral speech.55 Both the Free Speech Clause and the Petition

Clause protect “personal expression” – both expression

generally and expression directed towards the government for

the specific purpose of asking it to right a wrong.56 In this

context, form is secondary to content.

53 Id. at 530 (internal quotation marks omitted and

punctuation modified).

54 Mack, 427 F. App’x at 72-73.

55 See, e.g., Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir.

2006) (“Nothing in the First Amendment itself suggests that

the right to petition for redress of grievances only attaches

when the petitioning takes a certain form.”).

56 See Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379,

388 (2011) (“Beyond the political sphere, both speech and

petition advance personal expression, although the right to

petition is generally concerned with expression directed to the

government seeking redress of a grievance.”).

20

The Government concedes that some informal, oral,

and even non-verbal expressions of grievances to the

government are protected under the Petition Clause.57 It

argues, however, that an oral grievance lodged by a prisoner,

in particular, should not be entitled to constitutional

protection. The Government stresses that prison is a unique

setting in which inmates and guards are in constant and often

contentious contact with each other. In its view, holding that

every oral complaint by a prisoner to a prison guard is

constitutionally protected would provide too many

opportunities for prisoners to lodge frivolous lawsuits.

While we appreciate the Government’s concerns, we

are not persuaded that an oral grievance should not receive

constitutional protection solely because it is lodged by a

prisoner as opposed to a civilian. It is well-established that

inmates do not relinquish their First Amendment right to

petition by virtue of being incarcerated.58 It is also true, as

the Government emphasizes, that an inmate only “retains

those First Amendment rights that are not inconsistent with

57 See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S.

886, 909 (1982) (boycott of merchants was protected activity

under Petition Clause); Brown v. Louisiana, 383 U.S. 131,

136 (1966) (silent protest at racially segregated library was

protected activity under Petition Clause); Edwards v. South

Carolina, 372 U.S. 229, 235 (1963) (peaceful march and

demonstrations were protected activity under Petition

Clause); Holzemer v. City of Memphis, 621 F.3d 512, 520-23

(6th Cir. 2010) (business owner’s oral, informal request to

city councilman regarding his company’s ability to park at

city venue was protected activity under Petition Clause).

58 See Turner v. Safley, 482 U.S. 78, 84 (1987).

21

his status as a prisoner or with the legitimate penological

objectives of the corrections system.”59 But under the facts

alleged, there is no reason for us to think that the First

Amendment rights Mack seeks to vindicate here are

incompatible with his status as a prisoner.

Mack’s allegations make clear that he complained to

Stephens for the specific purpose of seeking redress. His

complaint concerned a prison guard’s conduct that the prison

itself proscribes—religious harassment.60 His complaint was

not obscene or inappropriate. In fact, the Government

concedes that Mack’s oral grievance was “minimally

disruptive and arguably valuable.”61 And Mack complained

almost immediately after the harassment occurred,

undermining any contention that Mack formulated some sort

of plan to lodge a complaint in order to bring a frivolous

lawsuit. In short, Mack’s oral grievance sufficiently and

timely put prison officials on notice that he was seeking

redress, was conveyed to prison officials in a reasonable

manner, and concerned conduct that the prison itself

prohibits. Under the circumstances of this case, these factors

lead us to conclude that Mack’s oral grievance is entitled to

constitutional protection.

Significantly, moreover, prison officials at FCI Loretto

may have actually encouraged inmates to communicate their

concerns orally. BOP procedures require inmates to present

an issue “informally to staff” before filing a formal grievance,

59 Pell v. Procunier, 417 U.S. 817, 822 (1974).

60 See 28 C.F.R. § 548.15.

61 Gov’t Br. 25.

22

and require wardens to “establish procedures to allow for the

informal resolution of inmate complaints.”62 FCI Loretto’s

inmate handbook explains that, “Executive Staff and

Department Heads regularly stand mainline at the lunch meal

and you are encouraged to bring legitimate concerns to their

attention.”63 We can reasonably assume that this is why

Mack approached Stephens and Yost in person during his

lunch hour. It would be illogical to allow prison officials to

retaliate against Mack for his oral complaint if FCI Loretto

encourages the type of informal resolution that Mack

attempted.

To our knowledge, only one other circuit has

addressed this specific issue. In Pearson v. Welborn,64 the

Seventh Circuit held that an inmate’s oral complaints to

prison guards about the use of shackles in group therapy and

the denial of yard time were constitutionally protected under

the Petition Clause.65 The court explained that “[n]othing in

the First Amendment itself suggests that the right to petition

for redress of grievances only attaches when the petitioning

takes a specific form.”66 And while “certain types of

‘petitioning’ would be obviously inconsistent with

62 See 28 C.F.R. 542.13(a).

63 U.S. Dep’t of Justice, Fed. Bureau of Prisons, FCI Loretto

Inmate Admission and Orientation Handbook, 14 (May

2015), available at

https://www.bop.gov/locations/institutions/lor/LOR_aohandb

ook.pdf (emphasis added).

64 471 F.3d 732.

65 Id. at 741.

66 Id.

23

imprisonment (marches or group protests, for example),”67

the inmate’s oral complaints in that case did not fall into that

category. We find the Seventh Circuit’s rationale to readily

apply to the circumstances of this case.68

For these reasons, we conclude that Mack’s oral

grievance to Stephens regarding the anti-Muslim harassment

he endured at work constitutes protected activity under the

First Amendment.69

67 Id.

68 See also Williams v. Wahner, 731 F.3d 731, 734 (7th Cir.

2013) (“Many prisoners can explain themselves orally but not

in writing. They may be illiterate in English, or they may

simply be such poor writers that they can’t convey their

thoughts other than orally.”).

69 The Government urges us to impose a public concern

requirement on oral grievances in the prisoner-work context.

In the public employment context, public employees who

assert First Amendment free speech or right to petition claims

against their government employers must show that their

speech addressed a matter of public concern. See Connick v.

Myers, 461 U.S. 138, 145-48 (1983); Guarnieri, 564 U.S. at

398-99. We have explicitly stated, however, that the rationale

for the public/private concern distinction in the public

employment context does not apply in other contexts,

including prison settings. Eichenlaub v. Twp. of Indiana, 385

F.3d 274, 284 (3d Cir. 2004). Several other circuits have held

the same. See, e.g., Watkins v. Kasper, 599 F.3d 791, 795

(7th Cir. 2010); Friedl v. City of New York, 210 F.3d 79, 87

(2d Cir. 2000).

24

v. Roberts, Venslosky, and Stephens are

Not Entitled to Qualified Immunity

The remaining question we must answer with respect

to Mack’s First Amendment retaliation claim is whether

Roberts, Venslosky, and Stephens are entitled to qualified

immunity.70 “[G]overnment officials performing discretionary

functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.”71 To be clearly

established, “[t]he contours of the right must be sufficiently

clear that a reasonable official would understand that what he

is doing violates that right.”72 “The dispositive question is

whether the violative nature of particular conduct is clearly

established.”73 That is not to say that qualified immunity

applies “unless the very action in question has previously

been held unlawful,” only that “in light of pre-existing law

the unlawfulness must be apparent.”74

70 Because the District Court found no First Amendment

retaliation violation, it did not address whether the officers

were entitled to qualified immunity. As this issue is purely a

question of law at this stage, we address it in the first

instance.

71 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

72 Anderson v. Creighton, 483 U.S. 635, 640 (1987).

73 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)

(internal quotation marks omitted).

74 Anderson, 483 U.S. at 640.

25

We have long recognized that prisoners have a right to

be free from retaliation for exercising their First Amendment

right to petition. Indeed, “[r]etaliating against a prisoner for

the exercise of [any of] his constitutional rights is

unconstitutional.”75 Retaliatory termination is clearly

unlawful, both inside and outside the prison context.76 The

fact that the officers retaliated against Mack before he

reduced his grievance to writing is inconsequential. While

we have never held before today that a prisoner’s oral

grievance, in particular, is constitutionally protected, we have

certainly never suggested that such a grievance is entitled to

lower protection than one reduced to writing. And there are

myriad cases outside the prison context that make no

distinction between oral and written grievances.77 Thus we

have little doubt concluding that prisoners’ oral grievances

are indeed entitled to constitutional protection. A reasonable

official in the prison officers’ position should therefore have

known that retaliating against Mack for exercising his right to

petition, whether in the form of an oral or written grievance,

was unlawful.78 This is especially so if the prison actually

encourages its inmates to communicate their concerns orally.

75 Bistrian, 696 F.3d at 376.

76 Although prisoners have no liberty or property interest in

prison employment, James v. Quinlan, 866 F.2d 627, 629-30

(3d Cir. 1989), it is unlawful to terminate a prisoner’s

employment in retaliation for them having exercised a

constitutional right, see Rauser v. Horn, 241 F.3d 330, 333

(3d Cir. 2001).

77 See supra note 57.

78 See, e.g., Holzemer, 621 F.3d at 529 (“[N]o reasonable

officer could believe that retaliation for the exercise of a First

26

Because we conclude that Mack has sufficiently stated

a First Amendment retaliation claim, and that the remaining

defendants are not entitled to qualified immunity, we will

vacate the District Court’s dismissal of this claim and remand

to the District Court for further proceedings.

B. Religious Freedom and Restoration Act

Claim

We next address Mack’s claim that the prison officers’

anti-Muslim conduct violated RFRA, which prohibits the

government from “substantially burden[ing] a person’s

exercise of religion.”79 Mack brings this claim against only

Officers Roberts and Venslosky in their individual capacities.

He alleges that their anti-Muslim harassment and hostility

towards him caused him to refrain from praying at work.

These allegations are sufficient to state a claim under RFRA.

i. RFRA’s Remedial Scope

Mack’s claim raises two threshold questions: (1)

whether RFRA is the appropriate vehicle for relief when the

challenged government action is an official’s individual

conduct, as opposed to a law, regulation, or policy, or conduct

pursuant to such; and (2) whether RFRA allows a litigant to

Amendment right is permitted when that exercise takes the

form of speech but is not permitted when the same expression

is written.”); Pearson, 471 F.3d at 742 (“[W]e think a

reasonable public official in [the defendant’s] position would

understand that retaliating against a prisoner on the basis of

his [oral] complaints about prison conditions is unlawful.”).

79 42 U.S.C. § 2000bb-1(a).

27

sue a government official for money damages. We answer

both questions in the affirmative.

Congress enacted RFRA “in order to provide very

broad protection for religious liberty.”80 RFRA prohibits the

“Government” from “substantially burden[ing] a person’s

exercise of religion even if the burden results from a rule of

general applicability,” unless the “Government” can

“demonstrate[] that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest;

and (2) is the least restrictive means of furthering that

compelling governmental interest.”81 The statute explicitly

provides a private cause of action against the “government”

for “appropriate relief.”82 “Government” is defined as

“includ[ing] a branch, department, agency, instrumentality,

and official (or other person acting under color of law) of the

United States.”83

The plain language of RFRA establishes that a plaintiff

may bring claims for “appropriate relief” against “persons,”

either federal “officials” or those acting under color of federal

law, whose individual conduct substantially burdens one’s

religious exercise. Nothing in the text of RFRA suggests that

the “official” or “person” must be acting in furtherance of an

official policy. This interpretation is consistent with the

80 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760

(2014).

81 42 U.S.C. § 2000bb-1(a)-(b).

82 Id. § 2000bb-1(c).

83 Id. § 2000bb-2(1) (emphasis added).

28

Supreme Court’s view of RFRA’s “[s]weeping coverage.”84

According to the Court, RFRA “intru[des] at every level of

government, displacing laws and prohibiting official actions

of almost every description and regardless of subject matter,”

and its restrictions apply to “every agency and official of the

Federal Government[].”85

Our conclusion that RFRA permits suits against

individual officers for their ultra vires acts is reinforced by

the similarities between RFRA and 42 U.S.C. § 1983.

Section 1983 creates a private cause of action against

“person[s]” acting “under color of [state law]” whose

individual conduct violates a plaintiff’s constitutional rights.86

Under § 1983, state officials or private persons acting under

color of state law may be held liable for their personal

unlawful conduct, irrespective of the existence or non-

existence of an unconstitutional law, regulation, or policy.

Because RFRA’s definition of “government” tracks the

language of § 1983, it is reasonable to assume that liability

can be imposed similarly under both statutes. Indeed, several

of our sister circuits have concluded that this word choice was

not coincidental and that Congress intended for courts to

borrow concepts from § 1983 jurisprudence when construing

84 City of Boerne v. Flores, 521 U.S. 507, 532 (1997).

85 Id. In fact, it is this “sweeping coverage” that led the Court

to invalidate RFRA as applied to the states for exceeding

Congress’s enforcement power under the Fourteenth

Amendment. Id. at 532-34.

86 42 U.S.C. § 1983.

29

RFRA.87 As the Ninth Circuit has explained, “[w]hen a

legislature borrows an already judicially interpreted phrase

from an old statute to use in a new statute, it is presumed that

the legislature intends to adopt not merely the old phrase but

the judicial construction of that phrase.”88 Under this

presumption, RFRA, like § 1983, provides for relief from

individual government conduct whether or not it is

undertaken pursuant to an official rule or policy. Thus,

contrary to the Government’s contentions, Mack’s failure to

challenge a prison policy or regulation does not defeat his

RFRA claim.

We also read RFRA as providing for monetary relief

from officers who commit unlawful conduct.89 Under

87 See, e.g., Listecki v. Official Comm. of Unsecured

Creditors, 780 F.3d 731, 738 (7th Cir. 2015), cert. dismissed,

136 S. Ct. 581 (2015) (applying § 1983 “under color of” law

analysis to determine whether private defendant was the

“government” for purposes of RFRA); Sutton v. Providence

St. Joseph Med. Ctr., 192 F.3d 826, 834-35 (9th Cir. 1999)

(same).

88 Sutton, 192 F.3d at 834-35 (quoting Long v. Director,

Office of Workers’ Comp. Programs, 767 F.2d 1578, 1581

(9th Cir. 1985)).

89 Although we have never held before today that damages

suits are available under RFRA, we and several other circuits

have assumed this to be the case. See, e.g., Jama v. Esmor

Corr. Servs., Inc., 577 F.3d 169, 174 (3d Cir. 2009)

(assuming RFRA damages were available against corporate

and individual defendants when reviewing attorney fee

award); Mack v. O’Leary, 80 F.3d 1175, 1177 (7th Cir. 1996),

cert. granted, judgment vacated on other grounds, 522 U.S.

30

RFRA’s judicial relief provision, persons whose religious

exercise has been substantially burdened by the government

may “obtain appropriate relief against a government.”90 The

statute does not define “appropriate relief.” Hence we look to

the traditional presumption articulated in Franklin v.

Gwinnett County Public Schools91 that “any appropriate

relief” is available unless Congress expressly indicates

otherwise.92

801, district court partially aff’d, 1998 WL 416151 (7th Cir.

1998) (assuming that prisoner was entitled to sue prison

officials for damages under RFRA because the statute defines

“government” to include government employees); Brown v.

Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 538 (1st Cir.

1995), abrogation on other grounds recognized by Martinez

v. Cui, 608 F.3d 54, 63-64 (1st Cir. 2010) (assuming that

damages were available under RFRA in concluding that

RFRA does not apply retroactively to plaintiffs’ claim for

damages).

90 42 U.S.C. § 2000bb-1(c).

91 503 U.S. 60 (1992).

92 Because Mack brings his RFRA claim against only Officers

Roberts and Venslosky in their individual capacities, the

federal government’s sovereign immunity to suits for

damages is irrelevant here. Cf. Davila v. Gladden, 777 F.3d

1198, 1210 (11th Cir. 2015), cert. denied sub nom. Davila v.

Haynes, 136 S. Ct. 78 (2015) (“Congress did not

unequivocally waive its sovereign immunity in passing

RFRA. RFRA does not therefore authorize suits for money

damages against officers in their official capacities.”).

31

In Franklin, the Supreme Court considered whether

Title IX of the Education Amendments of 1972, which the

Court previously held creates an implied right of action,

provides for damages relief. The Court applied the

longstanding presumption that, “absent clear direction to the

contrary by Congress, the federal courts have the power to

award any appropriate relief in a cognizable cause of action

brought pursuant to a federal statute.”93 “Finding no express

congressional intent to limit the remedies available under the

implied right of action, the Court held that compensatory

damages were available” under Title IX.94

The same presumption applies here – more so, we

think, because Congress expressly stated that a claimant may

obtain “appropriate relief” against the government – the exact

language used in Franklin. Congress enacted RFRA one year

after Franklin was decided and was therefore well aware that

“appropriate relief” means what it says, and that, without

expressly stating otherwise, all appropriate relief would be

available.95 Of course, the relief has to be appropriate vis-à-

vis the purposes of the statute. As we have explained, the

93 Franklin, 503 U.S. at 70-71.

94 Sossamon v. Texas, 563 U.S. 277, 288 (2011) (citing

Franklin, 503 U.S. at 73).

95 See Availability of Money Damages Under the Religious

Freedom and Restoration Act, 18 Op. O.L.C. 180, 183 (1994)

(“Because RFRA’s reference to ‘appropriate relief’ does not

clearly exclude money damages, there is a strong argument

that under the Franklin standard money damages should be

made available to RFRA plaintiffs in suits against non-

sovereign entities.”).

32

purposes of RFRA are to provide broad religious liberty

protections. We see no reason why a suit for money damages

against a government official whose conduct violates RFRA

would be inconsistent with those purposes.

Our conclusion is bolstered, again, by the similarities

between RFRA and § 1983, which has long provided for

money damages against state officials sued in their individual

capacities.96 We are unmoved, however, by the similarities in

the text of RFRA and its sister statute, RLUIPA, which we

have held does not provide for damages against state officials

sued in their individual capacities.97 Although the judicial

relief provision in RLUIPA mirrors that in RFRA,98 RLUIPA

was enacted pursuant to Congress’s powers under the

Spending Clause, thereby allowing Congress to impose

certain conditions, such as civil liability, on the recipients of

federal funds, such as state prison institutions.99 Because

state officials are not direct recipients of the federal funds,

and thus would have no notice of the conditions imposed on

them, they cannot be held individually liable under

RLUIPA.100 RFRA, by contrast, was enacted pursuant to

96 United States ex rel. Jones v. Rundle, 453 F.2d 147, 150

n.11 (3d Cir. 1971) (“Money damages may constitute

appropriate relief in Section 1983 cases.” (citing Monroe v.

Pape, 365 U.S. 163, 187 (1961))).

97 See Sharp v. Johnson, 669 F.3d 144, 154-55 (3d Cir. 2012).

98 See 42 U.S.C. § 2000cc-2(a).

99 Sharp, 669 F.3d at 154.

100 Id. at 154-55.

33

Congress’s powers under the Necessary and Proper Clause

and thus does not implicate the same concerns.101

For these reasons, we conclude that federal officers

who violate RFRA may be sued in their individual capacity

for damages.

ii. Mack Has Alleged a Substantial

Burden on His Religious

Exercise

We now address the merits of Mack’s RFRA claim.

To establish a prima facie case under RFRA, Mack must

allege that the government (1) substantially burdened (2) a

sincere (3) religious exercise.102 The Government does not

dispute the sincerity of Mack’s exercise of his religious

beliefs. Thus, the only issue is whether Mack has sufficiently

alleged a substantial burden on his religious exercise.

Although RFRA does not explicitly define the term

“substantial burden,” we have explained that a substantial

burden exists where (1) “a follower is forced to choose

101 We are also unmoved by the conclusion of one district

court that RFRA does not provide for damages against

individual officers because that form of relief was unavailable

under the Supreme Court jurisprudence that RFRA sought to

restore. See Tanvir v. Lynch, 128 F. Supp. 3d 756, 777-78

(S.D.N.Y. 2015). As noted by the Supreme Court in Hobby

Lobby, RFRA provides “even broader protection for religious

liberty than was available” previously. 134 S. Ct. at 2761 n.3.

102 See Gonzales v. O Centro Espirita Beneficiente Uniao do

Vegetal, 546 U.S. 418, 428 (2006).

34

between following the precepts of his religion and forfeiting

benefits otherwise generally available to other inmates versus

abandoning one of the precepts of his religion in order to

receive a benefit;” or (2) “the government puts substantial

pressure on an adherent to substantially modify his behavior

and to violate his beliefs.”103

Mack argues that the combination of Officer Roberts’

anti-Muslim harassment and Officer Venslosky’s tacit

approval created a hostile work environment that caused him

to stop praying at work. We can reasonably infer from these

allegations that Mack previously was in the practice of

praying at work before the harassment took place. Although

Mack concedes that the officers did not directly command

him to cease praying, a burden can be “substantial” even if it

involves indirect coercion to betray one’s religious beliefs.104

Because we think the indirect pressure the officers placed on

Mack may very well have substantially burdened his religious

exercise, we conclude that his allegations are sufficient to

survive a motion to dismiss. We will therefore vacate the

District Court’s dismissal of Mack’s RFRA claim and remand

to the District Court for further proceedings.

103 Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007).

Although Klem examined the definition of “substantial

burden” in the context of RLUIPA, the two statutes are

analogous for purposes of the substantial burden test.

104 See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485

U.S. 439, 450 (1988) (“[I]ndirect coercion or penalties on the

free exercise of religion, not just outright prohibitions, are

subject to scrutiny under the First Amendment.”).

35

C. Free Exercise Claim

Next, we address Mack’s claim that the prison

officers’ anti-Muslim conduct violated his First Amendment

right to freely exercise his religion.105 Mack seeks only

monetary relief, asserting that he has an implied right of

action for damages pursuant to Bivens. But neither the

Supreme Court nor this Court has ever extended Bivens to

Free Exercise claims. In view of RFRA’s broad protections

for religious liberty, we decline to do so here.

The Supreme Court in Wilkie v. Robbins106 set forth a

two-part framework for considering whether to extend Bivens

to new contexts. First, we ask whether there is an alternative

remedial scheme available to the plaintiff and, if so, whether

the existing scheme “convinc[es]” us to refrain from

providing a new, freestanding damages remedy.107 If not,

then we consider whether “special factors” counsel hesitation

in creating a new cause of action for damages.108 “Special

factors” typically relate to the question of who should decide

whether and how a remedy should be provided.109 We must

keep in mind, however, that “‘Congress is in a far better

105 The Free Exercise Clause of the First Amendment

provides that “Congress shall make no law . . . prohibiting the

free exercise [of religion.]” U.S. Const. amend. I, cl. 1.

106 551 U.S. 537 (2007).

107 Id. at 550.

108 Id.

109 See Bush v. Lucas, 462 U.S. 367, 380 (1983).

36

position than a court to evaluate the impact of a new species

of litigation’ against those who act on the public’s behalf.”110

Mack’s argument fails at step one because the

religious liberty protections provided by RFRA strongly

militate against creating a Bivens action for Free Exercise

claims. As detailed in our preceding section, RFRA provides

Mack with a comprehensive remedial scheme for violations

of substantial burdens on his religious exercise. Indeed,

“Congress enacted RFRA in order to provide greater

protection for religious exercise than is available under the

First Amendment.”111 Under RFRA, burdens on religious

exercise need not be intentional, only substantial. And, as we

have explained, RFRA provides claimants with all

“appropriate relief” for such violations. Given this alternative

remedial scheme, we can conceive no adequate justification

for extending Bivens to Free Exercise claims. We will

therefore affirm the District Court’s dismissal of Mack’s Free

Exercise claim.

D. Equal Protection Claim

Finally, we address Mack’s equal protection claim

under the Fifth Amendment.112 To state an equal protection

110 Wilkie, 551 U.S. at 562 (quoting Bush, 462 U.S. at 389).

111 Holt v. Hobbs, 135 S. Ct. 853, 859-60 (2015).

112 Although the Fifth Amendment does not contain an equal

protection clause, the Supreme Court has construed the Fifth

Amendment’s Due Process Clause as containing an equal

protection guarantee. See Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 616 (1991). Accordingly, “Fifth

Amendment equal protection claims are examined under the

same principles that apply to such claims under the

37

claim, Mack must allege that he was treated differently than

other similarly situated inmates, and that this different

treatment was the result of intentional discrimination based

on his membership in a protected class, such as religious

affiliation.113

Mack did not specifically raise an equal protection

claim in his amended complaint, though he argued in his first

complaint that he was denied equal protection of prison

regulations and/or policies.114 He elaborated in his opposition

to the defendants’ motion to dismiss that he was “targeted”

and “singled out . . . due to his faith, and that no other inmate

who[] worked in the commissary was treated with hostility

because of their religion.”115 On appeal, Mack contends that

these allegations, construed liberally, support two plausible

inferences: (1) that the defendants terminated him from his

work assignment because of his religion, and (2) that the

defendants harassed him because of his religion.

Even construing his pleadings liberally, we are not

convinced that Mack has sufficiently stated a claim for

discriminatory termination based on his religion. His

allegations certainly make out the claim that he was fired

because he complained of the anti-Muslim harassment against

him: “Plaintiff then stated . . . ‘[t]he only reason I’m being

Fourteenth Amendment.” Abdul-Akbar v. McKelvie, 239

F.3d 307, 317 (3d Cir. 2001).

113 See Hassan v. City of New York, 804 F.3d 277, 294, 298

(3d Cir. 2015).

114 Compl. 1.

115 Mack, No. 3:10-cv-264, ECF No. 42, at 5.

38

fired is because I spoke to [Defendant] Mr. Stevens [sic]

about what Mr. Roberts did and said to me.’”116 But we find

it much harder to construe his pleadings as making out the

claim that he was fired because he is Muslim, or that the

officers’ anti-Muslim animus played a role in their decision to

fire him.

Mack’s discriminatory harassment claim fares no

better. Mack alleges two instances of discriminatory conduct

by Officer Roberts – first placing the Islam-offensive sticker

on his back, and then shouting that “there is no good Muslim

except a dead Muslim.” While these instances certainly

provide strong evidence of Roberts’ anti-Muslim animus,

they do not, standing alone, state an equal protection

violation.117 We will therefore affirm the District Court’s

dismissal of Mack’s equal protection claim.

III. CONCLUSION

At first blush, this case may seem to lack merit. But

Mack’s allegations, taken as true, raise legitimate concerns

about how he was treated in prison. This case has also raised

116 Am. Compl. ¶ 23. See id. ¶ 35 (alleging that Roberts and

Venslosky “retaliate[d] against [Mack] by firing him from the

commissary job, because of plaintiff exercising his right to

seek redress by way of (oral) grievance”).

117 In other words, the behavior that Mack sets forth in his

complaint – i.e., two instances of anti-Muslim harassment –

does not force us to confront whether and to what extent

persistent harassment may make out a claim for an equal

protection violation. We are confident that two instances of

harassment are insufficient.

39

several unsettled issues about how or if a litigant such as

Mack may obtain relief. For reasons we have explored, we

conclude that Mack’s First Amendment retaliation and RFRA

claims may proceed, and his First Amendment Free Exercise

and Fifth Amendment equal protection claims may not. We

will therefore affirm in part, vacate in part, and remand to the

District Court for further proceedings consistent with this

Opinion.

1

Mack v. Yost, et al.,

No. 14-2738

_________________________________________________

ROTH, Circuit Judge, concurring in part and dissenting in

part:

I respectfully dissent from the holding of the majority

in Part II A of its opinion that Mack has stated a First

Amendment retaliation claim against defendants Roberts and

Venslosky. I believe that, with regard to a retaliation claim

made by the inmate of a prison, oral complaints should not be

considered protected conduct under the First Amendment.

Oral complaints, unlike written grievances, do not create a

record. In fact, oral complaints may generate uncertainty

about the content, or even the existence, of the grievance. In

addition, a written complaint better provides notice to prison

officials about the nature of the grievance and the individuals

implicated in it.1 This written notice is important because, in

the prison setting, inmates constantly interact with multiple

prison officials, and “virtually any adverse action taken

against a prisoner by a prison official—even those otherwise

not rising to the level of a constitutional violation—can be

characterized as a constitutionally proscribed retaliatory act.”2

1 Johnson v. Johnson, 385 F.3d 503, 526-27 (5th Cir. 2004)

(letters and forms filed by inmate provided prison officials

notice of the substantial risk that inmate faced for his safety). 2 Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (internal

quotations omitted).

2

Drawing a line between oral, informal complaints and

written, formal grievances reflects some of the difficulties in

the administration of prisons and in the handling inmate

grievances. Congress had these concerns in mind when it

enacted the Prison Litigation Reform Act, which directs

inmates to comply with the correctional institution’s policy

on grievance resolution.3 The institution’s policy here, found

in the Loretto inmate handbook, directs that inmates file

written grievances; the handbook makes no mention of oral

complaints.

As we set out above, the logic behind encouraging

written rather than oral complaints is obvious when viewed in

the context of effective administration of the prison grievance

system. The majority’s conclusion that an oral, informal

complaint constitutes protected conduct under the First

Amendment renders the administration of grievance

procedures more difficult and risks vastly increasing the

number of prisoner lawsuits involving retaliation claims.

Furthermore, our precedent is clear that written

grievances do constitute protected conduct under the First

Amendment. In Milhouse, we held that the inmate stated a

claim that he was subjected to a conspiratorially planned

series of disciplinary actions as retaliation for initiating a civil

rights suit against prison officials.4 In Bistrian, we concluded

that the inmate stated a claim that prison officials confined

him in the segregated housing unit in retaliation for written

complaints he filed through his attorney.5 A written

3 42 U.S.C. § 1997e(a) (2000). 4 Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981). 5 Bistrian v. Levi, 696 F.3d 352, 362-63 (3d Cir. 2012).

3

grievance protects the prisoner as well as the prison

administration.

In conclusion, considering the policy behind the Prison

Litigation Reform Act’s requirement that a grievance be in

writing and that it comply with the correctional institution’s

policy, along with the Loretto inmate handbook’s requirement

that grievances be in writing, I find that these requirements

are “legitimate penological objectives of the corrections

system.”6

I consider, therefore, that it is not a violation of a

prisoner’s First Amendment rights to require that any

grievance that would form the basis for a retaliation claim be

in writing and to refuse to find a retaliation claim arising from

an oral complaint. Thus, I would affirm the District Court’s

dismissal of the First Amendment retaliation claim.

I do, however, join the majority in its holding in Part

II B that the allegations of the RFRA violation survive a

motion to dismiss and that that claim should be remanded to

the District Court. I also join the majority in its holding in

Part II C and D that the District Court’s dismissal of the First

Amendment Free Exercise claim and the RLUIPA claim be

affirmed.

6 Pell v. Procunier, 417 U.S. 817, 822 (1974) (holding that in

the First Amendment context “a prison inmate retains those

First Amendment rights that are not inconsistent with his

status as a prisoner or with the legitimate penological

objectives of the corrections system.”).